When a bankruptcy case is filed in federal court, the judge will issue an automatic stay, which prevents your creditors from collecting debts until your bankruptcy case has been closed. However, if you are filing your second bankruptcy case within a year after your first case has been dismissed, the automatic stay in your second case will only last 30 days. Therefore, if you want the automatic stay to continue past the 30 day mark, you will have to ask the court to extend the stay period.[1] To be successful, you will have to draft a motion, file the motion, and argue your motion at a hearing.

Steps

Part 1

Researching Your Motion

1

Hire a lawyer. At this point in your bankruptcy, you have already filed multiple lawsuits in the past year. Therefore, in all likelihood, you probably already have a lawyer. However, if you do not, you should get one now. A bankruptcy lawyer will help you through the motion process to ensure you have the best chance of extending the automatic stay you currently have.

If you do not know where to find a quality bankruptcy lawyer, contact your state bar association's lawyer referral service. After answering a few general questions, you will be given contact information for a number of qualified lawyers in your area.

2

Identify important federal rules of civil procedure. When you File Bankruptcy in the United States, you will do so in federal court.[2] Therefore, the Federal Rules of Civil Procedure will apply. These rules dictate the who, what, when, where, and why of your motion to extend the automatic stay. For example, the Federal Rules of Civil Procedure, as well as local court rules, will dictate when your motion must be filed and what your motion must include. If you have a lawyer, they will determine what procedural rules they need to follow in order to file the motion correctly.

However, if you are filing the motion on your own, you need to get a copy of the procedural rules in your jurisdiction, which can usually be found at the courthouse, a law library, or online. Once you have a copy, talk to someone at the courthouse or at a law library about the rules you need to know in order to file a motion. Law librarians and court staff are great assets and usually understand these rules well.

3

Analyze your reasons for asking for an extension. When you draft your motion to extend an automatic stay, you will have to explain your reasoning to the court. In general, the court will grant your motion if:[3]

You can show that your new bankruptcy case has been filed in good faith

Circumstances have changed since your first bankruptcy case was dismissed (e.g., you have compiled more debt, you have lost a job, you have gotten a divorce)

Whether you want the stay to be extended for every creditor or only for certain creditors

4

Understand the automatic stay you already have. An automatic stay extension may not be necessary in every bankruptcy case. For example, if this is your first time filing for bankruptcy, your automatic stay will most likely last through the completion of your case. In most cases where your automatic stay only lasts 30 days, however, you will want to file a motion to extend.

In very limited circumstances, the 30 day automatic stay granted when you file your second bankruptcy case will offer you enough time to process your case.

5

Gather documents that will support your motion. When you file a motion to extend an automatic stay, you will have to accompany that motion with declarations and memorandums that support your position. Therefore, you should gather documents that help support that conclusion.

For example, you might include correspondence from creditors showing that collection activities are continuing even though you have filed for bankruptcy.

In addition, you might include a legal memorandum that discusses the legal parameters of these motions and when they are usually granted in your jurisdiction.[4] Your lawyer will write this memorandum if it is necessary.

6

Meet and confer with opposing counsel. In most, if not all, federal courts, you will be required to meet and confer with opposing counsel before you can file a motion. To do this, have your lawyer call lawyers for the creditors. They should discuss ways to resolve the timing issue without having to file a motion.

If your motion has a deadline, you will have to talk with opposing counsel at least five days before filing the motion.

If there is no deadline for your motion to extend, you must talk to opposing counsel at least 10 days prior to filing your motion.[5]

Part 2

Drafting Your Motion

1

Check with the court for forms. Some federal courts will have motion forms available for you to use. These are especially useful if you are representing yourself. Call the court where your bankruptcy case has been filed, or check on their website, to determine if they have any resources you can use. For example, the United States Bankruptcy Court for the Southern District of Indiana has a form you can use, which is specifically tailored to a motion to extend an automatic stay.[6]

2

Create a caption. If no forms are available, or if you have a lawyer, you will most likely draft a motion from scratch. Detailed drafting rules can be found within the local jurisdiction's rules of procedure, as well as the Federal Rules of Civil Procedure. In general, each notice of motion and motion will start with a caption. The caption goes on the very front page of your motion and contains the names of the parties, the name of the court, and the case number.[7]

3

Title your motion. Directly under your case number, your motion needs to be titled as something like "Motion to Extend the Automatic Stay". The title needs to clearly identify the subject of your motion.[8]

4

Draft the body of your motion. The body of your motion will be brief but informative. You should start by identifying yourself and stating what relief you are seeking. For example, the first paragraph of your motion might state: "I, Sally Jones, respectfully request that this Court extend the automatic stay, pursuant to 11 U.S.C. Section 362(c)(3) and (4)." Next, your motion needs to state the reasons why you think your motion should be granted. In general, your reasoning will include the following statements:[9]

You filed a bankruptcy case, which is your second one this year

There has been a substantial change in your finances since your first case was dismissed

The automatic stay will terminate without an order from this Court

5

Provide notice. The last part of your motion and notice of motion needs to include information about the hearing. Because you do not know when your hearing will be yet, draft a paragraph that will allow you to fill in the blanks later. This paragraph should leave space for the hearing time, date, judge, and courtroom.[10]

6

Compile attachments. In addition to your motion and notice of motion, you will usually attach other documents that help support your argument. These attachments will help the judge rule in your favor. In general, you will want to attach the following documents to your motion:[11]

A memorandum of points and authorities, which will include any legal citations and arguments you find persuasive. Be as brief and concise as possible.[12]

A declaration in support of your motion, which is a sworn statement where you can write down facts that support your case.

A proposed order, which the judge will sign if they grant your motion to extend an automatic stay.

7

Leave space for signatures. At the end of each one of your separate documents, make sure you leave spaces for you and/or your lawyer to sign.[13]

Part 3

Filing Your Motion

1

Call the clerk of court to learn about the filing process. Some courts require you to serve interested parties before you file your motion. Other courts want you to file first and serve later. Check with your court and make sure you follow the correct procedures.

2

File your motion. A filing is made when you deliver original copies of your paperwork to the clerk of court.[14] Some courts will also require you to bring copies of your paperwork as well. It is generally suggested that you bring originals as well as at least two copies. That way, you can file the original, serve one of the copies, and keep another copy for your records.[15]

When you file your motion, it will get stamped as filed. This is important as it indicates to everyone that the filing process has been completed.

3

Schedule a hearing date. When you file your motion, you must ask the clerk to put a hearing date on the judge's schedule. The date of your hearing must be a certain number of days after your motion has been filed and served on all interested parties. For example, in the Central District of California, your hearing date must be at least 31 days after the date you file and serve the motion.

Once your hearing date is scheduled, make sure you write the information in your motion.[16]

4

Serve your motion on all interested parties. When you are filing a motion to extend an automatic stay, you must serve all creditors that will be affected by the stay and the United States Trustee.[17] Depending on the size of your bankruptcy case, this might mean you will have to serve tens, or even hundreds, of creditors.

To serve an interested party, have someone over the age of 18 who is unrelated to the case hand a copy of your motion (and supporting documents) to them or their lawyer. If the server cannot personally serve an interested party, they may also be able to leave a copy of the motion at their normal place of business.[18]

5

File proofs of service. Every time your server serves an interested party they must fill out a certificate of service. This certificate will indicate the date on which a copy of the motion was served, how it was served, and where it was served. The server must sign this document then give it to you.[19] You need to file these certificates with the court as soon as you get them.

6

Wait for responses. Interested parties will have an opportunity to respond to your motion and ask the judge to deny it. Each party's response will have to include their reasoning for objecting to your motion. These responses will usually need to be filed with the court at least 21 days before the hearing. In most courts, if the creditor tries to stall the extension process, the automatic stay will remain in place until responses have been filed and a hearing has been held.

If creditors or other interested parties do file a response, you will have an opportunity to reply. If you reply to a party's opposition, it must be filed with the court at least 14 days before the date of your hearing.[20]

Part 4

Attending Your Hearing

1

Arrive early. Courts will often cancel your hearing if there is no opposition to the motion or if the judge believes they can make a decision based on your written filings alone.[21] However, if the court wants to hold a hearing, make sure you arrive to the courthouse early on that day. Give yourself enough time to park, get through security, and find your courtroom.

When you find your courtroom, enter quietly and wait for your case to be called.

2

Make quality arguments in support of your motion. When the judge calls your case, step to the front of the courtroom and introduce yourself. If you are with a lawyer, they will do the talking. The judge will start the hearing and ask questions about your motion to extend an automatic stay. Explain your legal position clearly and succinctly.

Be sure you bring copies of important documents with you to your hearing. Some judges will want to look at these documents and may not have received them beforehand.

3

Listen to opposing arguments. If any opposing parties are present, they will be given an opportunity to argue their side of things as well. Listen carefully to what they say and think about how you will respond.

4

Respond to opposing arguments. When the opposing parties have presented their arguments, you will usually be given a chance to respond to those arguments. Again, be succinct and explain your reasoning carefully. Make it easy for the judge to understand your points and rule in your favor.

For example, a specific creditor may argue that because your debt to them is not sufficiently protected (e.g., the collateral does not have insurance), they should be allowed to continue with their collection procedures despite the bankruptcy proceedings.[22] In response, if possible, you would tell the court that the debt is sufficiently protected, and then you would provide evidence of that protection. Evidence might include insurance documents that prove your statement.

5

Wait for the judge's ruling. At the end of the hearing, the judge will usually announce their ruling verbally in open court. If the judge grants your motion, the automatic stay will be extended and creditors will not be allowed to contact you regarding your debts. However, if the judge denies your motion, the automatic stay will be lifted after the 30 day period and creditors will be allowed to contact you again.

6

Get the final order. If you prevail, the judge will sign your proposed order, which was attached to your motion. This order solidifies the judge's ruling and makes it official. Once the judge signs the order, you may have to file it with the clerk.